December 22, 2017

The Emergency Medical Treatment and Labor Act (“EMTALA”) isn’t always the first thing most of us think of when we think about recent enforcement actions by the Office of Inspector General (“OIG”) of the United States Department of Health and Human Services (“HHS”) and other government regulators. We tend to think first of the Stark Law, the Anti-Kickback Statute, and the False Claims Act, perhaps because of the large volume of cases and settlements and the shockingly high figures associate with civil money penalties and treble damages under the False Claims Act. However, there is one space that EMTALA is finding an increasing foothold with regard to enforcement actions and settlements: mental health and substance abuse treatment.

Six of twelve OIG EMTALA enforcement actions between November 2016 and November 2017 involved mental health or substance abuse treatment. Four of those enforcement actions involving mental health and substance abuse treatment happened since the beginning of 2017, and the last three EMTALA enforcement actions all related to the provision of (or lack of providing) mental health and substance abuse treatment to hospital emergency patients.

A settlement from October 17, 2017 involves a Missouri hospital’s policy to turn patients with a blood alcohol level (BAL) above 100 over to law enforcement. Two patients with BALs above the limits presented to the hospital for evaluation of possible suicide attempt by overdose. Both were released to law enforcement (i.e., transferred) without receiving a medical screening examination or necessary stabilizing treatment as required by EMTALA. One of these patients ended up back in the hospital the next day for another attempted suicide by overdose.[1] Another settlement in South Carolina involved “parking” patients with psychiatric Emergency Medical Conditions (“EMCs”) in the Emergency Room for between 6 and 38 days, despite the fact that there were available psychiatric beds at the facility.[2] Yet another case involved the inappropriate transfer of a patient with a psychiatric EMC by private vehicle without appropriate stabilizing treatment. While the private vehicle was en route to the other hospital, the patient exited the car and was struck by another vehicle. The OIG found that the hospital had inappropriately transferred 17 patients with psychiatric EMCs without providing stabilizing treatment, and in each case, the hospital had the capacity to treat, stabilize, or admit each patient.[3]

The above cases highlight the recent prevalence of EMTALA cases (including an additional four cases in December 2017). They also serve as a reminder that EMTALA encompasses mental health and substance abuse EMCs, just like any other emergency condition. Hospitals must always provide a medical screening examination to any patient who comes to the Emergency Department with an EMC,[4] regardless of the nature of their EMC or whether they have resources at the hospital to actually stabilize or treat the EMC. Once the medical screening examination is complete, then the hospital can evaluate whether it has the necessary resources (i.e., capabilities and capacity) to stabilize or treat the EMC and can conduct an appropriate transfer if necessary.

[1] Missouri Hospital Settles Case Involving Patient Dumping Allegations, OIG (October 17, 2017), available at https://oig.hhs.gov/fraud/enforcement/cmp/index.asp.

[2] South Carolina Hospital Settles Case Involving Patient Dumping Allegations, OIG (June 23, 2017), available at https://oig.hhs.gov/fraud/enforcement/cmp/index.asp.

[3] Missouri Hospital Settles Case Involving Patient Dumping Allegations, OIG (November 28, 2016), available at https://oig.hhs.gov/fraud/enforcement/cmp/index.asp.

[4] 42 C.F.R. § 489.24(a).